SECOND SECTION

Application no. 62304/12 Markas KARDIÅ AUSKAS against Lithuania lodged on 20 September 2012

STATEMENT OF FACTS

The applicant, Mr Markas Kardišauskas , is a Lithuanian national, who was born in 1979 and lives in Pravieniškės .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The pre-trial investigation into the applicant ’ s injury

As from 3 January 2003 the applicant was serving a prison sentence in Pravieniškės Prison ( Pravieniškių 1-ieji pataisos namai ). On 25 May 2003 he was found beaten up and severely injured in the prison chapel after being attacked by other prisoners. A pre-trial investigation into the attack was opened the same day by the Pravieniškės Prison authorities.

On 10 July 2003 the applicant was acknowledged as a victim by the investigators.

According to the medical certificate of 28 August 2003, a severe skull fracture had occurred as a result of two impacts to the applicant ’ s head. He had been unconscious for some time and surgery was carried out. The doctor concluded that the applicant had sustained a grievous head injury and would need a long rehabilitation. On 8 August 2003 the applicant was declared Category II disabled; in March 2004 and March 2005 he was declared Category III disabled (a less severe condition of disability).

From May to September 2003 the investigators questioned 28 witnesses; operative investigation measures were ordered, the victim ’ s additional examinations were carried out and photos of possible suspects were shown to him.

The applicant several times objected to the way the investigation in the case was being conducted and made requests to the prosecutors.

On 7 August 2008 the Kaišiadorių district prosecutor ’ s office refused to start a new investigation against the prison authorities and resolve the question of damages caused to the applicant. The prosecutor wrote:

“The applicant invokes facts which are relevant to the criminal case concerning the injury of M. Kardišauskas . A pre-trial investigation into this event is already pending. In case a failure of the officers to perform their official duties is established, a question of their criminal responsibility would be subsequently decided. The question of pecuniary and non-pecuniary damage caused to the applicant will be decided in the current pre-trial investigation after a person or persons suspected of the crime have been identified. If then, due to his health condition or other reasons M. Kardišauskas is unable to submit a civil claim on his own, the prosecutors will submit it as prescribed by Article 117 of the Code on Criminal Procedure.”

On 19 April 2010 the prosecutors informed the applicant ’ s mother that no suspect had been identified during the investigation. They also pointed out that within the criminal investigation she had been only questioned as a witness and had not been granted the status of a victim or a civil plaintiff. Therefore, she had no right to see the materials of the pre-trial investigation or to make copies of the documents of the case-file.

The pre-trial investigation was still pending on 7 June 2012 as was observed by the Supreme Administrative Court in the administrative case for redress.

It appears that on the day when the present application was submitted the applicant was still serving his prison sentence.

2. The administrative proceedings for damages against the State

In October 2010 the applicant, who believed that he was eligible for compensation for non-pecuniary damage he had sustained, instituted proceedings against the State on the basis of Articles 6.246 and 6.271 of the Civil Code.

Firstly, he claimed damage to his health caused by the failure of the prison authorities to protect him from ill-treatment.

Secondly, the applicant also claimed damages because the investigation into the circumstances of the incident was not effective and no suspect had been identified.

During the proceedings the applicant argued that introduction of his civil claim for damages in respect of the injury had been delayed for objective reasons, namely his difficult health condition and his continuing stay in prison, and the failure of the investigating authorities to indicate suspects and to inform the applicant in time of the possibility of submitting such a claim and of his right to legal aid.

On 14 November 2011 the Supreme Administrative Court remitted the case to the first instance court in order for the circumstances concerning the prescription of claims in respect of the damage to health to be examined.

By a final decision of 7 June 2012 the Supreme Administrative Court dismissed the claim due to the expiry of the three year prescription period applicable to health damage claims. The court rejected the applicant ’ s arguments that he had been misled by the prosecutors investigating the incident, who had convinced him that the claim for damages was to be submitted in the criminal case; he referred to the decision of the prosecutors of 7 August 2008. Besides, he did not know against whom to address a claim as no suspect had been identified during the prolonged and still continuing pre-trial investigation. The applicant ’ s argument that his health condition had prevented him from submitting the claim in time was also rejected.

B. Relevant domestic law and practise

The relevant provisions of the Civil Code read as follows:

Article 1.125 . Time limits of prescription

“8. Abridged three-year prescription shall be applied with respect to claims for compensation of damage, including claims for compensation of damage caused by defective production.”

The court practice concerning application of prescription in respect of claims for damages to health provides that the right to bring an action arises on the day on which a person is injured (the Supreme Court ’ s ruling of 10 December 2010 in civil case no. 3K-3-516/2010).

Article 6.246. Unlawful actions

“1. Civil liability shall arise from the non-performance of a duty established by law or by contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from a violation of the general duty to behave with care. ...”

Article 6.271. Liability to compensation for damage caused by unlawful actions of institutions of public authority

“1. Damage caused by unlawful acts of institutions of public authority must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of a public authority institution. ...

2. For the purposes of this Article, the notion ‘ institution of public authority ’ shall mean any subject of public law (State or municipal institutions, officials, public servants or any other employee of these institutions, etc.), as well as private persons performing functions of a public authority.

3. For the purposes of this Article, the notion ‘ action ’ shall mean any action (or inaction) by an institution of public authority or its employees that directly affects the rights, liberties and interests of persons (legal acts or individual acts adopted by the institutions of State and municipal authorities, administrative acts, physical acts, etc., with the exception of court judgments, verdicts in criminal cases, decisions in civil and administrative cases and orders).

4. Civil liability of the State or a municipality subject to this Article shall arise where employees of institutions of public authority fail to act in the manner prescribed by law for those institutions and their employees.”

COMPLAINTS

The applicant complains that the State has failed to conduct an effective investigation into the circumstances of his attack and injury in the prison and that the culprits have remained unpunished. He also contends that the domestic authorities have failed to comply with their positive obligation to ensure order and safety and to prevent the violence against him whilst he was in prison. In view of those complaints the applicant referred to the case of Česnulevičius v. Lithuania , no. 13462/06 , 10 January 2012.

The applicant further complains under Article 6 § 1 of the Convention about a violation of his right to a fair hearing by the administrative courts, alleging he was prevented from obtaining compensation for the damage he sustained while in prison. He also argues that the length of the pre-trial investigation of nine years is unreasonable.

QUESTIONS TO THE PARTIES

1. Has the State complied with its positive obligation under Article 3 of the Convention to secure order and safety in prison in the present case and to protect the applicant from ill-treatment in the present case?

2. Was the investigation by the domestic authorities compatible with the procedural requirements of Article 3 of the Convention? The Government are requested to provide information regarding the current state of the investigation into the applicant ’ s injury and, in particular, to clarify whether the persons responsible have been identified and convicted.

3. Has the applicant exhausted all effective domestic r emedies, as required by Article 35 § 1 of the Convention:

- with regard to his complaints during the ongoing investigation (see, for comparison, Silickis and Silickiene v. Lithuania ( dec. ), no. 20496/02, 10 November 2009);

- in respect of his claim for damages to the administrative courts, in particular, was that claim an effective remedy within the meaning of Article 35 § 1?